"Systematic Murder" Complaint Filed To ICC Over Gaza Killings

"Systematic Murder" Complaint Filed To ICC Over
Gaza Killings

Kiwi Investigator Led
Investigations Teams In Gaza

"The information
available provides a reasonable basis to believe that
members of the Israeli Army commited systematic murders of
Palestinians demonstrators, in Palestine, near the border."
- Complaint To ICC Submitted 17th May
2018

As diplomatic
condemnations of the Gaza Massacre death toll from
last Monday continue to echo around the world, an
International Criminal Court investigation into war crimes
committed by Israeli Defence Force snipers against
Palestinian prostesters is looking increasingly possible.
Scoop's Alastair Thompson reports from
France on the timely laying of a complaint by 562 victims
and families of those killed and injured in the Great March
of Return.

At 10am on Thursday 17th May in
a small office in the center of Lyon a detailed war crimes
complaint on behalf of 562 victims and families of those
seriously injured or killed in the Great Return March was
submitted to the International Criminal Court
by Lyon Based lawyer Gilles
Devers.

Devers and Julie Webb Pullman, the chief
investigator who has been working in Gaza for the past four
years, participated in a press conference held via skype
with Arabic media based in Gaza. While the press conference
wasn't well publicised, or attended, the potential impact of
the complaint is another matter.

To date the International
Criminal Court has proven completely ineffective in dealing
with events in occupied Palestine. There are many reasons
for this, including the relative youth of the court itself -
established in 2002. But now, after a decade of work to bring the situation in Gaza before the Court, those seeking justice may be on
the threshold of a breakthrough.

The 32 page complaint is accompanied
by detailed individual case files on each victim's injury or
death. Work to complete these files continues in Gaza. And
further case files will be submitted for the 60 people
killed, and 100s shot on the Gaza/Israel
border on Monday 14th May.

Monday was far and away the
worst day of violence over the seven weeks of mass March of
Return protests held every Friday since March
30th.

Webb-Pullman's team have been working since January
this year with TAWTHEQ - a quango of the Palestinian
Government, constituted by legislation and given
responsibility to document war crimes after the 2008 Gaza
War which is also known as Operation Cast Lead. In that
conflict 1500 Gazans were killed and over 5000 injured.

The detailed files compiled by Webb-Pullman's team
include: photos taken in hospital of the injuries, medical
information about the cause of death and nature of injuries,
witness statements from those present at the scene, diagrams
of where the incidents took place and body map diagrams
showing how the injuries were inflicted. Each file has
associated evidence such as bullets or other projectiles and
blood samples, all collected with a clear chain of custody
record enabling it to be submitted formally in court. In
the case of gas related injuries and deaths - during the
March of Return protests there were several reported
incidents of gas weapons causing convulsions and other
symptoms more typical of nerve agents than tear gas - blood,
tissue and urine samples have been collected along with
spent gas cannisters.

******

Four Years
Experience Doccumenting Israeli War
Crimes

Julie Webb-Pullman in Lyon last
Thursday morning.

Over the past four years Kiwi
journalist, investigator and human rights activist Julie
Webb Pullman has trained and coordinated funding to assemble
teams to collect evidence, interview witnesses and properly
document thousands of individual war crimes committed in the
period since Operation Protective Edge (2014).

Without
properly collected evidence it is difficult for the
International Criminal Court to act. This difficulty is
compounded by the fact that Israel controls Gaza's borders
and does not recognise the ICC. It would therefore be very
difficult for ICC investigators to obtain timely access to
the scene to collect their own evidence.

Webb-Pullman, 64
has been trapped inside Gaza for the past four years after
she returned to Gaza in the lead up to the catastrophic 2014
Gaza War/bombing campaign in which over 2,000 Gazans were
killed and over 10,000 injured.

Before setting up her war
crimes documentation efforts, Webb Pullman worked as a
journalist in Gaza maintaining a blog and the Gaza.Scoop.ps website for Scoop.co.nz.
She also worked for a period training young Gazans in
reporting and writing skills.

Prosecutor of the
International Criminal Court Fatou Bensouda is responsible
for making a decision about whether to proceed with a war
crimes investigation into last Monday's massacre. Reports
indicate she has had a close eye on events in Gaza since the
Great Return March began on March 30th.

"It is with grave concern that I
note the violence and deteriorating situation in the Gaza
Strip in the context of recent mass demonstrations. Since 30
March 2018, at least 27 Palestinians have been reportedly
killed by the Israeli Defence Forces, with over a thousand
more injured, many, as a result of shootings using live
ammunition and rubber-bullets. Violence against civilians -
in a situation such as the one prevailing in Gaza - could
constitute crimes under the Rome Statute of the
International Criminal Court ("ICC" or "the Court"), as
could the use of civilian presence for the purpose of
shielding military activities."

The chief
prosecutor of the International Criminal Court (ICC) vowed
on Tuesday that she was watching closely killings in Gaza,
and would "take any action warranted" to prosecute anyone
deemed to be a suspected war criminal.

Fatou Bensouda's
comments come after the shooting dead of at least 61
Palestinians were gunned down on the border of Gaza during
protests.

"My staff is vigilantly following developments
on the ground and recording any alleged crime that could
fall within" the tribunal's jurisdiction, she warned in a
statement to AFP, adding: "The violence must
stop."

This report, also picked up by
Reuters, has attracted a lot of attention. In part because
Israel has till now appeared to be beyond reach of the
jurisdiction of the court, thanks to the protection it
enjoys at the UN Security Council from the United States.
The flagrancy of the human rights abuses committed on the
Gaza Border over the past seven weeks also strongly suggests
Israel itself also considers itself beyond the reach of the
court.

******

A Brief
History of War Crimes Complaints And Inquiries re.
Israel

Starting a war crimes inquiry into Israel's
actions as part of its occupation has been an aspirational
goal of many in the human rights community ever since the
Rome Statute establishing the International Criminal Court
entered into force in 2002.

The Statute includes very
clearly defined responsibilities of occupying powers in
relation to the citizens of occupied territories,
responsibilities that Israel has consistently flouted.

Footage of the Israeli Boarding
of the Mavi Marmara - 31 May 2010

To date there
has been only one war crimes inquiry related to Palestine,
albeit not one convened by the ICC, and not one related to
Palestinian deaths. Instead this inquiry was held into the
Gaza Flotilla Raid of 31 May 2010 during
which nine international activists (mostly Turkish) were
killed when the flotilla was boarded by IDF soldiers. In
August 2010 the UNSC convened a special panel led by former NZ
Prime Minister Geoffrey Palmer to examine what had
happened.

Later the ICC also examined the matter,
starting a preliminary inquiry, but deciding against
launching an investigation. This decision was closely
contested. Wikipedia:

"In
November 2014, Fatou Bensouda, Prosecutor for the
International Criminal Court (ICC), stated that there "is a
reasonable basis to believe that war crimes under the
jurisdiction of the International Criminal Court were
committed on one of the vessels, the Mavi Marmara, when
Israeli Defence Forces intercepted the 'Gaza Freedom
Flotilla' on 31 May 2010".

However, she declined to
further pursue the case as it "would not be of sufficient
gravity to justify further action by the ICC."
Representatives of the Comoros, on whose behalf the case was
referred to the ICC, appealed the prosecutor's decision, and
in July 2015 a pre-trial chamber ruled that Bensouda had
made errors in her decision to dismiss the case.

Bensouda
appealed, but in November 2015 the appeals chamber of the
International Criminal Court upheld the decision of the
pre-trial chamber. Bensouda then launched another
preliminary investigation, reviewing more than 5,000 pages
of documents and more than 300 statements from passengers.

In November 2017, she reaffirmed her previous decision
not to investigate, concluding that while war crimes may
have been committed on the Mavi Marmara ship and her
conclusion does not excuse any crimes which may have been
perpetrated, the incident wasn't serious enough to merit ICC
involvement.

In the Christmas 2008-09 Gaza War, over a
period of 22 days, 1417 Palestinians were killed, and 5303
injured - a majority of whom were civilians. Following the
War the Palestinian Parliament passed legislation to
establish the Palestinian Independent Commission for the
Prosecution of Zionist Crimes against Palestinians (TAWTHEQ)
- the organisation behind last week's ICC complaint.

And at that point the possibility of an
ICC prosecution of Israel and its military started to be
taken seriously, but even though complaints have since been
laid with the ICC, none have yet been done so on behalf of
the Palestinian Government.

******

How A War Crimes
Prosecution Can Be Started

The International Criminal
Court In Session In The Hague

There are three
ways that a war crimes inquiry can be initiated at the
International Criminal Court.

1. By referral
from the UN Security Council. A means which in the case of
Israel is wholly ineffective. Neither the US nor Israel
acknowledge the court.2. By referral from a member of a
nation state member of the court, all those nations that
have signed the Rome Statute, the treaty which set up the
court. The Palestinian Authority is a member of the court
and therefore can make such a referral.3. Or, the final
way an inquiry can begin is on the initiative of the court's
prosecutor, in the form of a request to the judges of the
court to open an inquiry.

******

The Great March of
Return Protests & Gaza Massacre of May
14th

Smoke and teargas during one of
the March of Return protests.

Gaza's Great March of Return protests
began on March 30th 2018. The protests were proposed on
Facebook and garnered such widespread support from groups
inside Gaza that they were officially endorsed by Hamas, the
government of Gaza.

Protesters set up a tents near the
border with Israel and held mass protests each week on
Friday, protesting primarily against the siege of Gaza, and
as the name suggests, for the right to return. It was always
intended that the protests would be peaceful, and
non-violent protest training sessions were held at the
protest camps to reinforce this.

Over the course of the
following seven weeks 104 protesters were killed and over
12,600 injured, around half of whom were hospitalised. Over
the same period one Israeli soldier was injured.

The vast
bulk of deaths and injuries, many of will lead to permanent
impairment, were caused by gunfire from IDF snipers
stationed behind the border, often on the top of high earth
berms. The legality of this use of lethal force
against unarmed protesters - some of whom were throwing
stones and burning tyres to obscure themselves from the view
of the snipers - was questioned from day one of the
protests.

A helpful description of the legal issues is
contained in this article in Slate Magazine:

"We know they
include at least two permits to allow force that could be
potentially lethal against individuals who do not pose
imminent danger to lives at the time they are being
targeted. One is individuals who are considered by the army
as principal "agitators" or principal demonstrators,
whatever that means. And if some conditions are met, they
can be targeted. We know that in the list of conditions that
have to be met, we know there is no demand that they present
imminent danger, which is a departure. That is a deviation
from the laws of use of force against civilians.

And the
second deals with individuals who cross a certain line of
distance toward the Gaza border fence and damage it. And
again, damaging the border fence is an offense and it is an
attack launched against a military installation. But it is
not a capital-punishment offense, and it can and should be
dealt with by nonlethal means. And unfortunately, what we
see and what we know from statements from both generals and
ministers, there is a permit to shoot to injure in these
cases. Even if the intent is not to kill, but to injure or
to stop, the legal implication of using lethal force, or
force that potentially could be lethal, is enough for me to
conclude that this is illegal and a grave violation of
international law.

Let me put it in a sound bite:
International law allows endangering human life in order to
protect human life, not any other thing. And what we are
seeing here is a deviation from that very simple, very
important principle."

The protest was scheduled to
reach its climax and end on the 70th Day of Nakba (The
Catastrophe), May 15th, the day on which the Palestinian
people recall being evicted from their homes in the period
1947-1949, and during which many of them were sent into
excile.

On the day before, May 14th, the US Embassy opened
in Jerusalem in controversial circumstances. And during the
opening the level of casualties on the Gaza border exploded.
By the end of the day 60 people had been killed and,
according to the Palestinians, 1350 had been wounded by
gunfire.

The massacre overshadowed the opening of the
Embassy in international media. It led to the withdrawal of
several diplomatic representatives from Israel, multiple
calls for independent investigations, complaints to the ICC
from Reporters Sans Frontiers and the Turkish Government,
and an emergency UN Security Council meeting.

******

United States Veto
Closes The First Door

Urgent UNSC Meeting Called To
Discuss Gaza Massacre

On Tuesday, the day after
the massacre, an emergency meeting of the UN Security
Council was held to discuss the high death toll in Gaza.

Called by the permanent representative from Kuwait, the
meeting followed use of its veto power by the United States
to prevent an otherwise unanimously supported UNSC statement
expressing alarm at the deaths and mayhem of 14th May, and
calling for an inquiry.

During Tuesday's Security Council
meeting - which you can watch in full above - there was
near unanimous support by UNSC members - other than the
United States - for an independent investigation into the
events which led to the loss of so many lives over the past
seven weeks, and especially on Monday.

It was widely noted
in the media that United States UN Ambassador Nikki Haley
walked out of the chamber as soon as the Palestinian
representative began to speak.

Earlier in her statement
to the council Amb. Haley blamed the death toll entirely on
Hamas, the Governing political party in Gaza, and rejected
any notion that the moving of the US Embassy was in any
manner a contributing cause to the deathtoll.

Similar
views, expressed by President Trump's son-in-law Jared
Kushner at the opening ceremony for the new US Embassy in
Jerusalem (which coincided with the massacre) were later
repeated several times later on Tuesday by a spokesman for
the White House, even though they were left out of the
official transcript of Kushner's remarks.

Kiwi investigator Webb
Pullman's work on war crimes in Gaza had begun earlier, in
2014. After arriving back in Gaza in June of 2014 she hadn't
been there very long before she found herself working as a
human shield, alongside other internationals (western
foreign residents), trying to protect hospitals from being
bombed. It was perceived that the Israelis would not kill
citizens of western nation for fear of that leading to
inconvenient questions and investigations.

During this
period Webb Pullman - who has worked as an investigator in
NZ and elsewhere - realised the best place to collect
evidence for potential war crimes prosecutions would be
inside the hospitals. She and her colleagues began to
document what they were seeing and to collect the evidence
of damage to the hospitals themselves. Often they found
parts of Israeli ordnance were left inside smashed up
hospital buildings. Later she formulated a documentation form which has now been adopted in several hospitals for use when
treating anyone who is injured by military means. This enables
the process of documentation of the circumstances of war related
death or injury events begin swiftly.

After her experience during the 2014 war
Webb-Pullman started to work full time on documenting war
crimes according to the standards that judicial processes
require. Working first with Gazan Human Rights NGO Hemaya and later
with the Gazan Ministry of Health Webb-Pullman put together
teams to enable her to compile comprehensive and detailed
war crimes complaints about events which occurred during Operation Protective Edge (aka the 2014 Gaza
War) and it's aftermath.

Operation Protective Edge,
which was for the most part an aerial bombardment, began in
Gaza in July and August of 2014. It led to the very
widespread destruction and massive loss of life. During the
bombing campaign more than 2300 Palestinians were killed and
10,000 injured.

The War Crimes complaint Webb-Pullman
assembled about the war detailed among other things, Israeli
use of prohibited weapons as well the deliberate bombing of
hospitals, residential apartment blocks, and civilian
infrastructure and the loss of civilian life.

Like the
latest complaint the 2014 War complaint was also lodged with
the ICC on behalf of individual victims and their families
because the Palestinian Government was not willing to make a
formal complaint under Article 14 of the Rome Statute.

It
is notable that as of today, four years after joining the
International Criminal Court, no formal referral request for
a war crimes investigation for any of the Gaza conflicts -
including the Gaza Massacre and the Great March of Return -
has been made to the ICC Prosecutor. That said there are
some signs that Palestinian Government resistance to making
a formal referral may be weakening.

******

Palestine's War
Crimes French Lawyer - Gilles Devers

Lyon Based International Law
Avocat Gilles Devers

Speaking to Scoop in his
office in Lyon, Gilles Devers, the French lawyer acting for
TAWTHEQ is hopeful that a long awaited break-through with
the ICC will be forthcoming now.

Devers points to the
strong public statements made by the prosecutor and by many
nations about the death toll on May 14th and in the seven
weeks preceding. The International legal issues related to
the use of lethal force against protesting civilians under
occupation were also relatively straight forward.

But most
important of all, M. Devers said, was the quality of the
evidence that had been gathered on the ground by
Webb-Pullman and her team.

In addition a recent request by
the ICC Prosecutor to open of an ICC investigation into war
crimes in Afghanistan since 2003 means there is now a
precedent for an investigation to be initiated under Article
15 of the Rome Statute, by the ICC Prosecutor acting on her
own account and applying to the magistrates of the court to
look at the case.

In the 32-page complaint lodged last week the
legal and evidential arguments for opening a War Crimes
prosecution are made using the specific detailed case of
Ibrahim Abu Thoraya, protester who was shot on Friday 15th
December 2017 in very similar circumstances to most of those
shot over the past seven weeks.

The complaint begins its
factual account of the circumstances of the March 30th to
May 14th protests as follows:

"There is a
separation barrier, built with solid facilities, with
masonry, stakes and fences. The barrier is protected by
heavy installations. Behind the separation barrier, there
are classic military equipment, which allows soldiers to
stand up, with guards, sandbags or earth embankments
enabling them to watch and act safely. Are erected as well
towers whose height exceeds the barrier, from which the
Israeli army can watch and shoot.

The Palestinian
protesters are on the opposite ground, which is a wasteland
with no defense facilities. There are just some reliefs and
some concrete blocks, which eventually offer a limited
protection. The young protesters are located on this area,
on a strip of land that is between 300 and 50 meters from
the barrier.

These are civilians who come for
demonstrations.

Since December 2017, the Palestinians have
not fired any shots at the Israeli soldiers.

The only
weapons available for the protesters are slingshots or
catapults throwing stones at the soldiers. The photographs
show that only a few protesters have these materials.

The
risk posed by throwing stones is objectively very limited.
These throws are essentially symbolic. Indeed, the
demonstrators cannot manage to approach the barrier, being
in the best case at about fifty meters, but it is impossible
to stay because when approaching they are targeted by the
Israeli fire.

The stones thrown are aimed at soldiers who
are in military uniform, so with an adequate protection even
in case of being hit by a stone. Moreover, the soldiers
benefit from material protection with high wire mesh, solid
protections, and on the tower, strong protections and
sandbags.

In such a way, these demonstrations are
essentially peaceful, with no armed elements, and the stones
throwing does not represent any real physical threat to the
soldiers.

For the Palestinians, these demonstrations are a
means to express their determined opposition to the
colonization process.

To disperse the demonstrators with a
real risk of crossing the barrier, Israeli soldiers can use
gas and defensive grenades.

However, responding to the
military command, the soldiers use targeted fire. The use of
targeted shootings against civilian demonstrators, who are
also on their own territory and separated by an impenetrable
barrier, characterizes the violation of international law."

Abu
Thoraya (a.k.a. Abu Thuraya) was shot by Israeli snipers in
the forehead whilst sitting in a wheelchair and waving a
flag just 30 meters from the border. The account of his
killing in the ICC complaint includes extracts from witness
accounts from multiple eyewitnesses.

Abu Thoraya, a
fisherman, was injured in the 2008 war and lost his legs,
after this he made a living washing cars. He felt strongly
about the occupation and was a very well known participant
in spontaneous border protests held after Friday prayers in
response to Donald Trump's announcement of the decision to
move the U.S. Embassy to Jerusalem.

On the 15th of
December around 200 protestors were protesting at a
particularly well fortified part of the border with Israel.

From the description of what happened next it is clear
that these earlier protests were a prelude to those which
took place over the past seven weeks. Stone throwing and
tyre burning, tear gas in response from the Israeli's
followed by rubber bullets and then gunfire from snipers,
sometimes shooting to frighten, sometimes to maim and
sometimes to kill.

As the protest on the 15th of December
heated up Abu Thoraya moved fairly close to the border,
around 30 meters away from the fortifications. A large
amount of teargas was being used and several protesters were
injured. Shortly before Thoraya was shot, other protester
was also shot dead. And then it was Abu Thoraya's
turn.

"It was after this first phase that
Ibrahim was shot. Ibrahim remained in his position as a
protester, motionless. He refused to go back. There was a
bit of confusion from the gas and bullet shooting that had
just taken place, but Ibrahim was still in his advanced
position, about twenty meters away. Several people witnessed
the shooting and saw Ibrahim collapse when he was hit by the
bullet.

There is no doubt that it is an Israeli shooting,
carried out by soldiers who were behind the protective wall.
Ibrahim was facing the soldiers, and the bullet hit his
forehead just above the brow bone, that is, from the front.
The bullet has been extracted and is the subject of an
expert report.

It's a sniper shot, designed to kill. The
soldiers have precision weapons, especially at 20 meters.
Ibrahim did not move, or very little, because of his
disability. Soldiers shoot and aim safely and without panic,
given the protections and security they have. It's a
criminal shot."

The complaint says that
while the shooter cannot be identified, witnesses believed
it was probably one of a group of female snipers at the
protest, one of whom may have been hit with a rock shortly
before Abu Thoraya was shot.

The killing of Thoraya has
also been reported on by B'Tselem, The Israeli Information
Center for Human Rights in the Occupied Territories as part
of their coverage of the "open fire", rules of engagement that
IDF soldiers operate under.

This report on the killing of Thoraya,
published by B'Tselem on Feb 14th, makes clear the flaws in
the IDF's open fire rules of engagement on the Gaza border
were operational, much discussed and widely known for a
lengthy period before the Great Return March began.

"During the wave of protests sparked by
President Trump's declaration about Jerusalem, another seven
demonstrators - apart from Abu Thuraya - were shot and
killed by soldiers who were stationed on the other side of
the perimeter fence. Like Abu Thuraya, none of the
protesters who were killed posed mortal danger to the
soldiers. According to figures from the Palestinian Ministry
of Health, between 7 and 31 December 2017, a total of 322
Palestinians were injured by live ammunition fired by the
military and 58 were injured by rubber-coated metal bullets.
This reality is a direct result of the military's open-fire
policy near the perimeter fence, which includes gunfire -
also by snipers - at stone-throwers who pose no danger
whatsoever.

The media reported that the Military Police
Investigations Unit has launched an investigation into the
shooting of Abu Thuraya. However, past experience shows the
investigation is highly unlikely to lead to the prosecution
of those responsible for this unlawful killing, to say
nothing of the prosecution of senior figures. This
experience, which shows that such investigations almost
always end in a whitewash, has led B'Tselem to stop sending
demands to the MAG Corps to open investigations. That said,
the obligation to investigate and bring to justice those
responsible remains squarely on the shoulders of the
military system. Yet as long as the MAG Corps continues its
policy of systematically whitewashing instances in which
Israeli security forces kill or injure Palestinians, with no
one being held to account for these actions, the unlawful
killing will continue."

At paragraph 99
of the complaint, the fact that the nature of shooting
policies have been so consistent for such a lengthy period
is used to conclude that the IDF is conducting a systematic
programme of murder.

"The situation of
the victim Ibrahim was the subject of a detailed report,
which makes the crime perfectly probable, and which shows
the quality of the work that can be produced by the services
of Palestine, to the International Criminal Court.

The
information available provides a reasonable basis to believe
that members of the Israeli Army commited systematic murders
of Palestinians demonstrators, in Palestine, near the
border."

The
Palestinian Authority is preparing to refer Israel to the
International Criminal Court (ICC) for alleged war crimes --
a potential key development for a case opened by the Court
in 2015.

A document referring Israel to the ICC for "war
crimes" was signed in Ramallah on Tuesday evening by
Palestinian Foreign Minister Riad Malki and is expected to
be filed with the Prosecutor next week. The decision was
taken after the May 14 protests in Gaza, senior Palestinian
official Saeb Erekat told the press.

That being said,
there have been similar such reports in the past, without a
referral having yet been made, and it is for this reason
that this complaint is being made to the Prosecutor under
Article 15 requesting that she take action on her own
account.

It is widely believed financial pressures form
donor nations is the reason no referral has been made to the
ICC in the four years since the Palestinian Government
signed the Rome Statute in 2014.

Alastair Thompson is the co-founder of Scoop. He is of Scottish and Irish extraction and from Wellington, New Zealand. Alastair has 24 years experience in the media, at the Dominion, National Business Review, North & South magazine, Straight Furrow newspaper and online since 1997. He is the winner of several journalism awards for business and investigative work.

Contact Alastair Thompson

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